Attaullahkhan S/O Mohammadkhan vs Kernath Jaywantrao Nagargoje And Another

By this Writ Petition, the petitioner (tenant) has challenged concurrent orders of eviction passed by the two Courts below on a suit for eviction

filed by the respondents (original plaintiffs/landlords). During the pendency of this Writ Petition, the original tenant died and his legal

representatives were brought on record. For the sake of convenience the tenant is being referred to as the 'petitioner'.

The facts of the present case in brief are that the petitioner entered into the suit premises being two shop blocks as a tenant since the year

19771978. There was no dispute about the payment of rent by the petitioner till 01Â08Â1997. But, thereafter, the respondents claimed that the

petitioner failed to make deposit of rent at the rate of Rs. 800/ per month from 01Â08Â1997 to 31Â05Â2000. Accordingly, on 17Â05Â2000

(ExhibitÂ55) the respondents issued notice to the petitioner claiming arrears of rent. Thereafter, the respondent issued another notice on 12Â06Â‐

2000 (ExhibitÂ56) to the petitioner claiming rent for the aforesaid period and stated that in case of failure to deposit of the arrears of rent for the

aforesaid period, the tenancy would stand terminated on 30Â​09Â​2000.

On 26Â06Â2000, the petitioner sent a reply (ExhibitÂ57) to the notice dated 17Â05Â2000 (ExhibitÂ55) sent by the respondents andÂ

disputed the quantum of rent. It was claimed by the petitioner that the rent was Rs. 500/ per month and not Rs.800/ per month. On

29Â06Â2000, the petitioner sent another reply (ExhibitÂ120) to the notice dated 12Â06Â2000 (ExhibitÂ56) sent by the respondents. Thereafter, the

respondents filed suit bearing Small Cause Suit No.1 of 2002 on 01Â​01Â​2002, seeking eviction of the petitioner from the suit shop premises.

At this stage, it would be relevant to state that the respondents had also filed another suit on 12Â​06Â​2000, bearing Small Case Suit No.54 of

2001, seeking eviction of the petitioner on the ground of bona fide need. The said suit was dismissed on 03Â07Â2003 and the appeal against such

dismissal was rejected on 21Â​04Â​2011.

In the suit for eviction filed on 01Â01Â2002 by the respondents on the ground of arrears of rent for the period 01Â08Â1997 to 31Â05Â2000,Â

the petitioner filed his written statement and he also filed an application for fixation of standard rent on 11Â11Â2002 (ExhibitÂ20). The

respondents also filed an application on 10Â12Â2002 (ExhibitÂ24), seeking a direction to the petitioner to deposit the arrears of rent at the rate

of Rs. 800/ per month and since the petitioner was disputing the said quantum, at least at the rate of Rs. 500/ per month as the amount of

rent claimed by the petitioner himself. On 15Â01Â2003, the Civil Judge Junior Division (trial Court) passed an order (ExhibitÂ24) directing the

petitioner to deposit the arrears of rent at Rs. 400/ per month. Thereafter, the trial Court passed an order on 07Â01Â2004 at ExhibitÂ20, fixing

the standard rent at Rs. 750/ per month as on 01Â01Â2002 and directed that there shall be increase at the rate of 4% per annum in the said

amount after lapse of one year commencing from 01Â01Â2002. The petitioner deposited an amount of Rs.16,250/ on 16Â02Â2000. It

was also claimed by the petitioner that after the amount was deposited, there was no default on his part either in payment of arrears of rent or the

amount that was due.

The parties led evidence in support of their claims. The petitioner claimed that the respondents were not justified in demanding monthly rent at

the rate of Rs. 800/ per month because the initial rent for the suit shop premises was only Rs. 150/ per month, which gradually increased to

the amount of Rs. 500/ per month. According to the petitioner, he was ready and willing to deposit the said rent at the rate of Rs. 500/ per

month but the respondents were not willing to accept the same, due to which he had sent money orders which were refused. Thereafter,

the petitioner claimed that he opened a separate account in his own name in a bank and deposited  the amount of Rs. 500/ per month as the

respondents had refused to accept the rent from him. According to him, he had informed the respondents about his intention to do so in

his reply dated 29Â​06Â​2000 (ExhibitÂ​120).Â

On the other hand, the respondents claimed in the evidence that the petitioner was never sincere in deposit of monthly rent and that he had

defaulted thereby exposing him to a decree of eviction on the ground of arrears of rent.

By judgment and order dated 12Â02Â2005, the trial Court decreed the suit and directed the petitioner to hand over vacant possession of the suit

shop to the respondents within two months from the date of the judgment. The trial Court found that the petitioner failed to deposit rent within 90

days from the receipt of notice and suit summons and therefore a case for issuance of decree of eviction against the petitioner was made out

under the provisions of the Maharashtra Rent Control Act, 1999, particularly Section 15 thereof. It was found that the petitioner failed to pay

rent within 90 days from the receipt of notice and therefore, under Section 15 of the said Act the respondents were entitled for a decree in

their favour.

Aggrieved by the said judgment and decree passed by the trial Court, the petitioner filed Regular Civil Appeal No.11 of 2006 in the Court of

District Judge, Yavatmal (appellate Court). By the impugned judgment and order dated 07Â08Â2015, the appellate Court dismissed the appeal

and confirmed the decree. The appellate Court found that the evidence and material on record demonstrated that the petitioner had defaulted

in payment of rent,as he had failed to pay rent within 90 days from the date of service of suit summons and that some part of the arrears of

rent amounting to Rs. 16220/ was deposited after 114 days from the receipt of suit summons. The appellate Court also disbelieved the

theory of the petitioner that he had opened a separate account in his name and he was depositing amount of Rs. 500/ per month in the said

account as the respondents had refused to accept the rent from him. The appellate Court confirmed the decree passed by the trial Court andÂ

also agreed with the trial Court on a question raised by the petitioner pertaining to Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC). It

had been contended on behalf of the petitioner that when the respondents had filed the earlier suit for eviction on the ground of bona fide need, failure

on their part to take the said ground of arrears of rent debarred the respondents from filing the subsequent suit for eviction of the petitioner.Â

Both the Courts below have found that the causes of action in two suits were not the same and that the said contention of the petitioner was

unworthy of consideration. Accordingly, the decree of eviction was confirmed against the petitioner.

Shri A.V. Bhide, learned Counsel appearing on behalf of the petitioner submitted that the Courts below had committed a grave error in rejecting

the ground of challenge raised pertaining to Order II Rule 2 of the CPC. It was contended that the period for which the arrears of rent were

claimed by the respondents as a ground for eviction was prior to point of time when suit for eviction on the ground of bond fide need was filed

and that therefore, failure on the part of the respondents to seek eviction on the ground of arrears of rent also, in the earlier suit, was fatal for the

subsequent suit filed by them. It was further submitted that even on merits the evidence and material had been erroneously appreciated

by the two Courts below while granting the decree of eviction. It was claimed that the petitioner had raised bona fide dispute regarding

quantum of rent and therefore, it could not be said that the petitioner was in arrears of rent and he had committed default for suffering a decree under

Section 15 of the aforesaid Act.

On the other hand, Shri S.C. Bhalerao, learned Counsel appearing on behalf of the respondents submitted that the cause of action in the earlier

suit for eviction was distinct and different from the cause of action in the present suit in which the decree for eviction was passed against the

petitioner. It was submitted that the provision of Order II Rule 2 of the Code and the law laid down in that context, would not apply to the facts

of the present case. It was also submitted that the two Courts below had concurrently  granted decree of eviction against the petitioner on

proper appreciation of the evidence and material on record and that therefore, no case was made out by the petitioner for this Court to exerciseÂ

writ jurisdiction in his favour.

Heard learned Counsel for the parties. Before considering the contentions raised on behalf of the rival parties, it would be appropriate toÂ

take into consideration the fact that the correctness or otherwise of the orders of the two Courts below is being examined by this Court while

exercising writ jurisdiction. While doing so, this Court is not acting as an appellate Court to go into each and every detail of the

matter and it is for the petitioner to demonstrate gross error and perversity in the findings rendered by the two Courts below for exercising writ

jurisdiction in his favour. The scope of examining the correctness of the impugned order is considerably limited in writ jurisdiction.

A perusal of the evidence and material on record and the orders of the two Courts below demonstrates that while the respondents claimed

arrears of rent from the petitioner at the rate of Rs. 800/ per month, the said amount was disputed by the petitioner and he claimed that he

was liable to pay rent only at the rate of Rs. 500/ per month.  The tenor of the notices issued by the respondents and the manner in

which the replies were sent by the petitioner show that there was indeed a dispute raised by the petitioner as regards the quantum of rent that

he was liable to pay for the suit shop premises to the respondents. Even if this Court proceeds on the basis that there was indeed a

dispute raised by the petitioner and that according to him he was liable to pay rent only at the rate of Rs. 500/ per month and that the

standard rent was fixed by the trial Court at Rs. 750/Â by order dated 07Â01Â2004Â (ExhibitÂ20), it would have to be demonstrated by the

petitioner that he was indeed depositing/paying rent at the rate of Rs.500/ per month regularly and that he did not commit any default forÂ

suffering a decree under Section 15 of the aforesaid Act.

The evidence and material on record demonstrate that the trial Court passed an order on 15Â01Â2003 (ExhibitÂ24) directing the petitioner to

deposit rent at the rate of Rs. 400/ per month. The trial Court further passed an order on 07Â01Â2004 (ExhibitÂ20) holding that theÂ

standard rent was Rs. 750/per month as on 01Â01Â2002 and that there was to be an increase of 4% per annum after lapse of one year from

01Â​01Â​2002.

In this situation, it was for the petitioner to demonstrate firstly, that he was regular in payment of rent at the admitted rate of Rs. 500/ per

month and that he was not in arrears, secondly that he had paid arrears of rent in compliance with order dated 15Â01Â2003 (ExhibitÂ24) and

order dated 07Â01Â2004 (ExhibitÂ20) passed by the trial Court. It has come on record that the petitioner has not been able to prove his claim of

his willingness to deposit the amount at the rate of Rs. 500/ per month. Hence, the respondents were constrained to approach the Court by filing

the suit for eviction on the ground of arrears of rent. The Courts below have examined the evidence and material on record and they haveÂ

found that the claim of the petitioner that he had taken steps to deposit the rent by way of money orders or opening a separate account in

his own name and deposited the amount regularly, was not supported by any material on record. If the petitioner was serious about his claim of

having deposited the monthly amount of Rs. 500/ in a separate account opened by him due to refusal of the respondents to accept the rent at

Rs. 500/ per month from him, the moment he was served with the suit summons, he ought to have transferred the amount from such an

account before the trial Court to show his bona fides. In that regard, no steps were taken by the petitioner.

The respondents had clearly stated in their notices (ExhibitsÂ55 and 56) dated 17Â05Â2000 and 12Â06Â2000, that they were claiming

arrears of rent at Rs. 800/ per month from the period 01Â01Â1997 to 31Â05Â2000. Even if it is accepted that the petitioner was raising a

dispute about the quantum of rent and according to him he was required to pay rent only at the rate of Rs. 500/ per month, there was nothing

on record to show that the petitioner deposited the arrears for the said period even at Rs. 500/ per month within a period of 90 days from the

receipt of the said notices.

The material on record also shows that even after the fixation of standard rent by the trial Court by an order dated 07Â01Â2004 at

the rate of Rs. 750/ per month, the petitioner did not deposit the entire arrears from 01Â01Â2002 up to date within 90 days from the

said order dated 07Â01Â2004. Therefore, upon minutely scrutinizing the evidence and material on record, it is seen that the petitioner had clearlyÂ

committed default and thereby exposed himself for grant of eviction decree on the ground of arrears of rent under subsections 1, 2 and 3 of Section

15 of the aforesaid Act. The petitioner has failed to demonstrate any perversity in the findings rendered by the Courts below concurrently, on

the basis of material and evidence on record. In such a situation, this Court cannot exercise writ jurisdiction in favour of the petitioner to reverse the

decree of eviction granted by the trial Court and confirmed by the appellate Court.

As regards the submission pertaining to Order II Rule 2 of the CPC, the Courts below have correctly analyzed the said provision and applied

it to the facts of the present case. A landlord is entitled to seek a decree of eviction against the tenant under various provisions specified in

the aforesaid Act. The causes of action available for the landlord under the various statutory provisions of the said Act are clearly distinct

and separate. Therefore, it cannot be said that when the landlord filed the suit for eviction on the ground of bona fide need,

he ought to have included all the grounds for eviction that may have been available to him. In fact, the cause of action for arrears of rent

specifically arises only when the contingencies contemplated in Section 15 of the said Act occur. Therefore, in a given case, although the

landlord may claim that a cause of action on the ground of bona fide need has accrued to him, it is not necessary that at the very same time a

cause of action for grant of decree of eviction on the ground of arrears of rent has arisen. The petitioner was not justified in claiming thatÂ

failure on the part of the respondents to invoke the ground of arrears of rent in the earlier suit filed for grant of decree on the ground of bona fide

need, was fatal and that subsequent suit could not have been filed. The Courts below have correctly applied the provision of Order II Rule 2

of the CPC to reject the said contention raised on behalf of the petitioner.

Therefore, it is found that the petitioner has failed to make out a case for exercise of writ jurisdiction of this Court in his favour. Accordingly,

this writ petition is dismissed and the decree of eviction granted against the petitioner is confirmed.

The learned Counsel for the petitioner has submitted that the petitioner has deposited rent up to December, 2018 and since he has a running

business in the suit premises he may be granted reasonable time of at least six months for vacating the suit shop. The learned Counsel for the

respondents, on instructions, states that the respondents would be agreeable for grant of such a request only on an undertaking given by the

petitioner that he would continue to pay rent regularly for the period up to 31Â03Â2019 and that he would not create any third party rights in

the suit shop and further he would hand over peaceful possession of the same to the respondents on or before 31Â03Â2019. In the light of the

above, it is directed as follows:Â​

(a) The petitioner shall furnish an undertaking before this Court within a period of four weeks stating that he shall handover peaceful possession of

the suit shop blocks to the respondents on or before 31Â​03Â​2019.

(b) The petitioner shall pay rent for the months of January, 2019, February, 2019 and March 2019 at the same rate at which he has already

deposited advance rent up to December, 2018, without any default. Such deposit of rent for the aforesaid three months shall be made

by him on or before the 5th day of each month.

(c) The petitioner shall not create any third party rights in the suit shop premises and that he shall handover peaceful and vacant possession

of the suit shop blocks to the respondents on or before 31Â​03Â​2019.

The writ petition is disposed of in above terms.